Jack Smith's Missed Opportunity

Members of Congress will likely not be indicted for the January 6 riot, a former federal prosecutor has said.

Peter Zeidenberg, who helped lead a special counsel investigation into the George W. Bush White House, told Newsweek that special counsel Jack Smith is busy with two cases pending against former president Donald Trump, and that he "has his hands full."

But Zeidenberg previously told Politico, on January 14, 2021, a week after the Capitol riot, that there were "potentially viable prosecutions" of Congress members. "I'd say those guys should be worried," he said at the time. The failure to follow up on possible breaches of the law could therefore represent a missed opportunity for prosecutors.

Zeidenberg was deputy special counsel in the prosecution of Lewis "Scooter" Libby, the former chief of staff of vice president Dick Cheney. President Trump later pardoned Libby, who was convicted of perjury and obstruction of justice following an investigation into the leaked identity of CIA agent Valerie Plame.

Zeidenberg, who is now a partner at the Arent Fox law firm in Washington, D.C., doesn't think prosecutors could get convictions against members of Congress, even if they wanted to take a case.

"Prosecutions of members of Congress would be extremely challenging based on what is publicly known," he said.

There had been ongoing speculation in 2021 about the fate of Colorado congresswoman Lauren Boebert. At 8.30 a.m. on January 6, 2021, she tweeted: "Today is 1776" - the year George Washington crossed the Delaware and defeated British forces during the American War of Independence.

However, an October 2021 USA Today news article showed that some of the online claims made about Boebert have proven to be false, including that she identified the location of Speaker Nancy Pelosi to the rioters.

Two Congressional Democrats, Steve Cohen and John Yarmuth, both reported seeing Boebert in a tunnel outside of the Cannon House Office Building giving a group tour days before the attack.

Boebert responded in a letter: "Representative Cohen's claim that he saw me give a reconnaissance tour with people not on the team is 100% false. I have never given any tours of the U.S. Capitol in the 117th Congress to anyone besides family members in town for my swearing in."

Newsweek sought email comment from Boebert's office on Monday.

In August, 2023, the 45-page federal indictment charging former President Trump with election interference details his contact with members of the Senate and Congress during and after the Jan. 6 riot.

• Co-conspirator 6, identified in the indictment as a political consultant, allegedly tried to confirm the phone numbers of six senators after Trump directed co-conspirator 1 to "call and attempt to enlist in further delaying the certification."
• In one voicemail for a senator, co-conspirator 1 said: "We need you, our Republican friends, to try to just slow it down[.]"

Trump and co-conspirator 1 "attempted to exploit the violence and chaos at the Capitol by calling lawmakers to convince them, based on knowingly false claims of election fraud, to delay the certification," the indictment says.

• While co-conspirator 1 was calling senators on Trump's behalf, the indictment says, the White House counsel called Trump to "ask him to withdraw any objections and allow the certification," but Trump "refused", the indictment reads.

The former president was indicted on four counts in Washington for allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021, riot at the U.S. Capitol. Trump has pleaded not guilty to the charges, including conspiracy to defraud the U.S. government and conspiracy to obstruct an official proceeding.

It is one of four criminal cases that Trump is facing while he campaigns as frontrunner for the Republican presidential nomination. He has also pleaded not guilty to charges in the other cases and has repeatedly said that they form part of a political witch hunt.

Newsweek sought email comment on Tuesday from Donald Trump's attorney.